A couple just settled the purchase for their first home, collected the keys from the agent, and headed off with a bottle of champagne to their new property to celebrate.

When they were driving up to the property they were greeted by the sight of a pile of rotting wood in the driveway, and a rickety old bench seat, which was not a chattel listed in the sale and purchase agreement, on the front porch.

On entering the property they also discovered some bags of books, an old wardrobe in the hall, and various pieces of rubbish throughout the property.

They had inspected the property the day before settlement but assumed these items would be removed prior to settlement.

Instead of celebrating they started worrying about whether they would have to be the ones to dispose of the items to the tip and pay any costs for doing so.

If a vendor is giving “Vacant Possession” on settlement this means that the vendor, or any tenants, and all their chattels which are not listed as being included in the agreement for sale and purchase of the property (chattels being anything that is not fixed to the land such as curtains or an oven) are gone from the property on settlement.

By leaving these unwanted items, including rubbish, at the property, the vendor has breached the purchasers’ right to vacant possession of the property.

If the purchasers had advised their lawyer when they inspected the property before settlement occurred that chattels not included in the sale had been left, they could potentially have demanded the items be removed, asked for a price reduction (as they will have to spend time and money removing the unwanted items at the property) or ask for funds to be held back from being paid to the vendor on settlement out of the sale proceeds until the vendor had removed the unwanted items.

If, like in this case, the purchasers did not raise any issue at the pre-settlement inspection, and only discovered that they had been burdened with the unwanted items after settlement had already been completed, then they could try contacting the vendor (through the lawyers for the parties, or directly) to reach some arrangement.  

If the purchasers cannot reach an agreement with the vendors, then they could go to the Disputes Tribunal (which deals with claims under $30,000) to try to recover costs they incur dealing with the unwanted items themselves.

We recommend that purchasers try to do the pre-settlement inspection once the vendor has mostly vacated to avoid issues like the above – however, this is not always possible, especially if the vendor is purchasing a new property on the same day.

Other ways a purchaser could deal with any concerns about unwanted items being left at the property, especially in a case of a property that is in very bad condition or has significant rubbish or debris, or very large items to be removed, is to include a clause in the agreement requiring rubbish or other items to be removed prior to a certain date, or have it noted in the chattels section of the agreement that the particular unwanted item is NOT included!

We recommend that purchasers always take legal advice before signing an Agreement for Sale and Purchase, so appropriate clauses can be added.  It is very important to keep your legal advisor informed about issues with the property such as excessive rubbish, so they can properly advise you about how to best protect yourself.


Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Andie Donnelly